The dharna Judgment – Our new judicial discourse?

Last week, the Supreme Court of Pakistan penned a new (and possibly unfinished) chapter in the judicial history of Pakistan. It did this through the Islamabad – Rawalpindi Sit-in / Dharna Judgment. Rather than a typical judgment containing complex legal language, the Judgment is more a judicial conversation with institutions and actors across our entire national political spectrum. The Judgment which spans some 43 pages, and covers various subjects under different headings, is an easy read for lawyers and laypersons alike due to the simplicity of the language used.

November 2017 Order

The Judgment is further to an Order passed by the Court in November 2017 in which the Court had taken cognizance of the Tehreek-e-Labbaik Pakistan (TLP) dharna in the twin cities of Islamabad-Rawalpindi. The Court had proceeded under Article 184(3) of the Constitution which gives it suo motu power to assume jurisdiction in matters of public importance with reference to the enforcement of Fundamental Rights under the Constitution.

Matters Covered by the Court

The Judgment (in the Court’s own words) covers the following matters: examination of the Constitution, determination of what constitutes fundamental rights, consequences of institutional overreach, tactics used to achieve political agendas, how the State protects citizens and their fundamental rights, security mechanisms in place, the mandate and role of intelligence agencies, independence and obligations of the media, responsibilities of PEMRA, role of the Election Commission and what Islam teaches.

The Judgment is more a judicial conversation with institutions and actors across our entire national political spectrum.

Indeed, by casting a net this wide, the intention of the Court was to pen its thoughts on almost every national, religious, and social matter of significance in our country’s history. Can reason and logic combine in a 43 pages long Judgment and cover all these matters regardless of how carefully crafted the themes are and no matter how well woven together they might be?

A Familiar Tale?

On the face of it, this is a familiar tale: one that is somewhat reminiscent of the erstwhile “Baba Rehmatay” approach. However, this time around, the Judgment is a more suave narrative that highlights some grave issues of national importance and the role played (both current and historic) by institutions and actors in perpetrating their severity. The Court blames all, and not just the TLP – an entity whose actions during the dharna led to stirring the Court into action. The Court notes the historic epidemic of institutional overreach and interference by institutions and political actors in each other’s’ affairs.

It compares TLP’s tactics during the dharna with previous sit-ins and notes that the State’s failure to effectively assert its writ in the past would have emboldened TLP to proceed with a carte blanche. It chastises the State for failing to uphold the trust reposed in it by the citizens to protect their lives, property, and fundamental rights. More importantly, the Court contends that the democratic right to protest and the right of assembly cannot justify trampling on citizens’ fundamental rights since all rights come with responsibility and restrictions imposed by law.

Taken to task are PEMRA for failure to take action against TV channels that had violated their terms of the license as well as intelligence agencies for allegedly handing over cash to TLP dharna participants and admitting before the Court their inability to “monitor the financials of those advocating violence and carrying out violent acts”. Actors and institutions are blamed for tarnishing what was supposed to be a seamless robe sown in the image of Islam and ideals underlying the Constitution but one that has been tainted over the years due to the murky state of affairs.

After touching upon the importance of democratic and peaceful means behind the creation of Pakistan and giving some examples from the life of the Holy Prophet (Peace and Blessing of Allah be upon Him), the Judgment notes that “Abuse, threats, and violence are the antithesis of the Islamic moral standard”.

A New Judicial Conversation?

As if fully cognizant of the breadth and scope of its inquiry, in paragraph 52, before concluding, the Court acknowledges its awareness: “… that some of the matters considered by us [the Court] are moral, political and religious.”, and that: “While the general moral decline and the loss of political and religious values can only be commented upon, we however have not lost sight of the parameters of the jurisdiction of this Court under Article 184(3) of the Constitution”.

The Court blames all, and not just the TLP – an entity whose actions during the dharna led to stirring the Court into action.

Why is the Court reminding us it hasn’t lost sight of Article 184(3) after covering almost all of our national history in the paragraphs preceding the 52nd? Surely, the fact that the Court has not spared any institution or actor in the rather thorough narrative detailing our national failings is more than the Court having “commented upon” the “general moral decline and loss of political and religious values”? Did the Court just manage to start a new judicial conversation?

Declarations and Directions

Proceeding thereafter, the Judgment disposes off the matter through a set of declarations and directions. These include summarizing the scope of various fundamental rights under the Constitution and the duties and responsibilities of the State, national institutions, and political actors. In other words, a mere slap on the wrist but no real consequences for the transgressors.

The Conundrum of Constitutional Interpretation

Whilst it may be heartening to see the Court as the savior taking a stock of the entire gamut of the political history of the country and penning guidelines on the constitutional role of the State and institutional actors, the rather sweeping references to our religious and political history with reference to the enforcement of fundamental rights does leave us in a bit of a quandary. As if painting our entire national canvass with one brush, is the Court treating Article 184(3) as a policy weapon whose edges may be sharpened by the Court to draw blood as and when desired?

What judicial tools to deploy, when interpreting the constitution is a universal and existential question faced by courts around the world. Is the constitution to be interpreted literally with strict fealty to the written text and nothing beyond? Is constitutional interpretation an ongoing judicial exercise beyond deduction of the written text to weaving the themes of the constitution into a seamless fabric stitched together through judicial reasoning? How should judges reason: should their decisions be based on policy (with some collective goal of the community in mind) or principle (focused on enforcement of individual rights)? Can judicial intervention cross over into the “charged political arena” where other institutional actors are centrally and arguably better positioned to implement and enforce the policy? These are very difficult questions and answers to these are by no means forthcoming.

The Policy vs Principle Debate

In the U.S., for example, the late Ronald Dworkin was one amongst many brilliant legal jurists who attempted such a theory of adjudication. He penned an outstanding essay in 1975 titled “Hard Cases”. The essay propounded the difference in judicial decision making between arguments of policy versus arguments of principle. Dworkin claimed that “[A]rguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole”.

It chastises the State for failing to uphold the trust reposed in it by the citizens to protect their lives, property, and fundamental rights.

For Dworkin, arguments of principle, on the other hand, “justify a political decision by showing that the decision respects or secures some individual or group right”. Dworkin’s thrust was that arguments of policy rest with the legislature whilst arguments of principle fall in the domain of the judiciary. Even in hard cases i.e. those involving complex constitutional and legal questions, Dworkin argued that judicial decisions should be generated through principle and not policy.

The Dworkian Hercules

To explain how this works, Dworkin went on to invent a fictional character of “superhuman skill, learning, patience, and acumen” whom he named Hercules (a lawyer and judge). Dworkin did this to explain how the best legal minds and judges ought to think and where they should look in the never-ending search for answers to hard constitutional questions.

In a hypothetical question posed before Hercules, the starting point for him would be to ask himself why “…the constitution has any power at all to create or destroy rights”. Hercules would also have to ask himself whether “The constitution sets out a general political scheme that is sufficiently just to be taken as settled for reasons of fairness”. The task before Hercules would be to determine: “…what scheme of [constitutional] principles has been settled” so that he can proceed to construct a constitutional theory and “a full political theory that justifies the constitution as a whole”. Not an easy task by any means for a judge in any jurisdiction.

But how will a judge reason from principle? Dworkin explains that the judge would first have to develop a theory of adjudication that enables the determination of “…what the rights are that would be coherent with, would “fit with”, the rest of the legal fabric, including its political, social, and ethical foundations”. This would enable the judge to “reason as the voice of the community, looking back on its history and weaving the present case as coherently as possible into the fabric of commitments expressed by the community’s prior social, political and legal history”. For Dworkin, the “judicial enterprise is quintessentially one of interpretation, articulation, persuasion, and argument”.

The essay propounded the difference in judicial decision making between arguments of policy versus arguments of principle.

Acknowledging in the latter part of his essay that “we are not Hercules”, Dworkin did not rule out the infallibility of judges. However, his core contention remained that judges should strive for a theory of adjudication that is “neither the implementation of preexisting texts, adopted by appropriate institutions nor the making of the new law to improve general welfare…” but arguments based on principle. In other words, Hercules would not care about a resulted oriented approach; so long as Hercules had carried out judicial reasoning based on arguments of principle, his job would be done.

The Court’s Judicial approach in the dharna case

Given that our Court took upon itself the “Herculean task” of traversing our entire political history to determine whether it has jurisdiction in the matter with reference to the enforcement of fundamental rights, perhaps it is fair for us to ask if the Court adopted a policy-oriented approach and if so, what were the shortcomings if any in the approach.

The first observation of a keen reader would be why limitations on the right of assembly/protest stated by the Court to be subject to restrictions imposed by law are not seen as applicable to the Lawyer’s Movement (as originally pointed out by Saad Rasool) – a movement that the Court sweepingly calls “peaceful”. In other words, it is questionable on what basis the Court concluded that a fundamental right was violated in the present dharna but not in previous protests that similarly caused loss of life and property.

The Court’s Basis for Assuming Jurisdiction: the “Public Importance” Argument

Paragraph 7 of the Judgment very briefly states the constitutional basis of the Court’s assumption of jurisdiction (an aspect, which the Judgment states, “was neither questioned nor challenged”). The Judgment goes on to refer to the fact that “the Constitution confers a number of different jurisdictions” on the Court one of which is its jurisdiction under Article 184(3) of the Constitution. The Court proceeds to cite one of its previous Judgments: Benazir Bhutto v Federation of Pakistan (1988) to explain the meaning of the term “public importance”:

“Now, what is meant by a question of public importance. The term “public” is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, state or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community…”.

Acknowledging in the latter part of his essay that “we are not Hercules”, Dworkin did not rule out the infallibility of judges.

Citing another case from 2011, the Court notes: “Public importance must include a purpose or aim in which general interest of the community, as opposed to the particular interest of the individuals, is directly or vitally concerned”.

The Judgment further notes: “To ensure that in matters of public importance the citizens are not deprived of their fundamental rights is the underlying objective of Article 184(3) of the Constitution. Before an order is made under Article 184(3) of the Constitution it would be appropriate if this Court identifies the public importance of the matter and the fundamental right/s requiring enforcement. And every possible care should be taken before making an order under Article 184(3) since there is no right to appeal such an order”.

The “policy” Slope and Pitfalls of the “Public Importance” Argument

Clearly, for the Court, the ultimate touchstone to seize jurisdiction remains the familiar pretext: that matters have reached the threshold of “public importance”. The critic might argue that while invoking “public importance” gives solace to the reader, it adds little substance to the legal argument. The critic may further argue that it hardly matters what meaning is given to the term “public importance”: a little twist here and there to stretch the meaning of the term will not confer any hitherto lacking legitimacy on the Court. In other words, we all know what “public importance” is and its central positioning in the Court’s own judicial narrative.

Shouldn’t the Court now rather be going beyond this familiar narrative and assuming jurisdiction on some established and well-reasoned out principles? Sooner rather than later, the Court may also have to consider reasoning out why, departing from existing tradition, the Court is entering into this judicial conversation with other organs and political actors. What is the objective of the conversation and what is the end game envisioned by the Court? This is by no means a trivial or inconsequential matter as this will determine the contours of our constitutional landscape for times to come.

Putting Hercules to Article 184(3) Test!

Indeed, Dworkin’s Hercules would have an unimaginably difficult task at hand if he were to frame a constitutional theory of adjudication to justify the scope and outer limits of Article 184(3). This is because textually interpreted Article 184(3) is inherently founded on precepts of policy. This is amply clear from the framers’ terms of choice: public importance – a term that, on the face of it, gravitates the judge to think about the collective goal/welfare of the community as opposed to adjudicating on the basis of principle. Hercules would have had to summon all his faculties to find answers in this treacherous legal terrain!

An order is made under Article 184(3) of the Constitution it would be appropriate if this Court identifies the public importance of the matter and the fundamental rights.

Historically, we have seen the Court adopt a policy-oriented theory of adjudication based on making assumptions about certain collective goals of society having a fundamental rights orientation. Acting suo motu, we saw the previous Chief Justice visited hospitals and chastised public officials and took up matters that were, arguably, on the basis of the trichotomy of powers underscored in the Constitution, outside the purview of the Court. The results of this approach were there for all to see: the Court was criticized for encroaching upon the rights and powers of other institutions through unwanted and unjustified judicial activism.

What direction our Court’s judicial reasoning (or a conversation, whatever we call it) takes us and whether it will be Dworkian in spirit (if not in letter) is hard to predict. The Court of the present and the future, like courts of other countries, will transition through time and carve out its own constitutional methodologies and approaches towards adjudication. However, unless the Court elaborately reasons out its further judgments (unlike the Judgment), what the Court considers loud judicial pronouncements in its conversation may end up being inaudible whispers falling on deaf ears. More importantly, the Court may end up going in circles in trying to legitimize its judicial foray down the slippery slope of Article 184(3).

Hassan Aslam Shad is a practising international lawyer and a graduate of Harvard Law School, U.S.A. He can be reached at veritas@post.harvard.edu. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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